to this subjection (e) contained in House Report 1364, the Report of the House Committee on Interstate and Foreign Commerce, on H.R. 4624, 78th Congress, 2d Session, wherein at page 20 it is stated.

"Subsection (e) would authorize treatment of Service beneficiaries in other hospitals, at the expense of the Service, as provided in regulations. This provision, which would afford a statutory basis for present regulation, is designed to meet overflow conditions and cases where beneficiaries may be remote from any Service hospital."

This subsection (e) appeared as section 322 (e) of H.R. 4624, which bill became Public Law 410, 78th Congress, 2d Session, and now appears in the United States Code as section 249, subsection (e) of title 42, Public Health and Welfare.

It is apparent from this quotation from the legislative history of this subsection that the permissive outcare and treatment of American seamen was only intended to apply where the Service hospitals were overcrowded or too remote. It did not intend the transfer of the entire function of caring for and hospitalization of American seamen from the Public Health Service, where it has long been roposed, to another agency such as the Veterans' Administration, as now proposed. That the Public Health Service has the statutory responsibility for the medical care and treatment of seamen is clear from the provisions of 42 United States Code section 249 (a).

It is equally clear from subsection (e) that this function of and responsibility in the Public Health Service could only be delegated by the officer in charge of the station at which application for treatment was made when there were overflow conditions or if the applicant were too remote from any Service facility.

It would seem from the above that the proposed shift of responsibility for medical care and hospitalization of seamen from the Public Health Service to the Veterans' Administration, both now with respect to the seven hospitals to be phased out and ultimately with respect to the remaining five to be transferred to the Veterans' Administration, would require some action by Congress to make it legally effective, or at least the inclusion of such a proposal in a reorganization plan to be submitted by the President to Congress in accordance with the Reorganization Act of 1939.

There has been some suggestion that authority to effect such a shift in function can be found in section 686 of title 31 of the United States Code, which permits any executive department or agency to place orders with another department or agency for materials, supplies, equipment, work or services, which the requisitioned agency is in the position to supply, or equipped to render. It provides that such supplies or services shall be paid for immediately by the requisitioning department or agency.

In the opinion of your counsel, this section does not contemplate a shift of statutory responsibility and function from one executive agency to another, such as is contemplated here, but rather the utilization by a department of another executive agency to furnish supplies or render services where it is in the interest of the Government to do so, the same to be paid for out of the appropriations of the responsible department or agency. This clearly indicates the securing of a particular requirement through another agency, not a shift in statutory function to that agency.

Sincerely yours,

ROBERT E. KLINE, Jr.

Senator BARTLETT. Does that legal opinion bear on the constitutionality of the bill before us?

Mr. CLARK. I think it does. Counsel has done a very lengthy study, going back into the annals of the actions of Congress to siphon out the will of the Congress as expressed in connection with the law. Basically what he found was that the authority to contract with other hospitals was only intended by the Congress to be exercised in two instances. The first instance was where the existing Public Health Service hospitals were overcrowded and couldn't take the patient and the second was where the seaman found himself in such a remote place that he couldn't get to the hospital. And the whole legislative history hinges on those two things.

Now our position and the position of our legal counsel is, that you cannot use that to transfer a function from the Public Health Service to the Veterans' Administration; that would be illegal. He also finds you can't transfer en masse a group of hospitals; that also violates the spirit if not the law as expressed in title 42, section 249.

Now we have an additional ruling which is quite pertinent given by the Comptroller General. If my information is correct, the seamen now in the Veterans' hospitals will have to wait until all veterans, whether they have service-connected disability or non-service-connected disability, are taken care of. We have been told there is a long waiting list. You can get in for a hernia, if it is strangulated; you can get your teeth fixed if you need oral surgery.

Mr. Chairman, this kind of thing will destroy marine hospitalization. If we have to go into the third waiting category, it will destroy marine hospitalization in this country.

Finally, we support-and when I say we, I include the Labor-Management Committee ,the AFL-CIO Maritime Committee, the American Maritime Association, the Merchant Marine Institute, and Pacific American Steamship Association, all those organizations, both labor and management, throughout the entire country, are unanimously in support of a bill which will allow the Congress to have something to say about this thing, to have something to say about a law that they created in 1798.

Let me say this, when I was Deputy Maritime Administrator, the fourth day I was there, the Korean war came on, and I have never seen so many of the brass from the Navy and the military in my life as came in the next day saying, "Help us, help us, we have to have ships broken out, so many by such and such a date," and so forth. We are always a popular organization in time of war, but we seem to be one of the most unpopular in time of peace. I remember when the Suez Canal situation was on they called upon us, for diversion ships. I remember in the Cuban situation when we were ready on standby, and I remember right now in the Vietnam situation, which is a pretty hot situation, I understand the merchant marine is being brought aboard on this.

So if there was ever a poor time to cancel out or to diminish marine hospitalization it is now, because section 101 of the Merchant Marine Act says we shall have able-bodied seamen in order to act as an auxiliary to the Armed Forces, so I say it is the wrong time to consider this kind of hospital reduction. Of course, I think, any time is the wrong time.

Now I would like to close my testimony with one statement. We favor this bill. We have an amendment or two which we would like to offer for the record for the consideration of the committee. To provide that the Executive can't terminate hospitals without congressional consent that doesn't mean they can't deteriorate it from now until kingdom come.

Senator BARTLETT. I am sorry, I have to answer a rollcall on the floor.

(Thereupon, a short recess was taken.)

Senator BARTLETT. Mr. Clark, would you continue, please?

Mr. CLARK. Mr. Chairman, I think I had finished my testimony. I would like to submit this proposal which modifies only slightly what

the bill, S. 1917, provides now. The only thing these changed recommendations do is to provide against impeding or diminishing the service. The bill now only talks about termination and even if it was passed, it wouldn't keep them from going ahead like they have been and letting the hospitals deteriorate as in the past.

We only submit this for consideration. There are probably better drafts, but we would like to enter this into the record as a recommendation.

(Suggested amendment follows:)

A BILL To amend the Merchant Marine Act of 1936, in order to protect and promote the health of seamen on vessels of the United States, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title IX of the Merchant Marine Act, 1936 (46 U.S.C., chapter 27, subchapter IX) is amended by adding at the end thereof the following new section:

"SEC. 908. The responsibility and function of providing medical, surgical and dental treatment and hospitalization for seamen and other beneficiaries reposed in the Public Health Service by section 249 of title 42, United States Code, shall not be transferred or assigned, in whole or in part, to any other department or agency of the United States, nor shall the program for maintaining the hospitals and other facilities necessary for the Public Health Service to carry out its medical care and hospitalization program for seamen and other beneficiaries in accordance with modern standards, be impeded or diminished without the consent of the appropriate Committees of the Congress."

Senator BARTLETT. Thank you, Mr. Clark.

I have only a question or two.

Very obviously, and I know you will agree with this statement, the committee is up against a situation whereby the Bureau of the Budget has by implication at least advised us that it considers the bill which we are considering at this time to be unconstitutional.

In light of that, what would be your suggestions, if any, as to amendments?

Mr. CLARK. I think the committee in light of that might well take a looksee at title 42, section 249, subsection (e), which is the portion of the law that gives them the right to make transfers or to contract services. Perhaps that particular section of the law could be changed to prohibit the kind of thing being done now.

Senator BARTLETT. How about these words, to which Mr. Hughes took rather vigorous exception, relating to the termination of these services, and I quote:

Without the consent of the appropriate committees of the Congress.

Mr. CLARK. I believe, but I am not too sure about this, that the Senate did something very similar to this, did it not, in the case of the veterans hospitals? Was there not-I am asking this in the form of a question-was there not an action taken either by the Senate or the House?

Senator BARTLETT. I think the House committee took that action within the week, but of course we don't know what the ultimate response of the Executive will be to that action, if it is finally cleared by the Congress for Executive action.

Mr. CLARK. I see. The only other thing I can suggest, and Mr. Haddock may have other suggestions, would be to consider modifying section 249 of title 42. They certainly can't do this if the basic authority which gives them permission to contract is modified in such a manner as to correct this kind of situation.

Senator BARTLETT. Mr. Haddock, do you have a comment to make? Mr. HADDOCK. I think, Mr. Chairman, the responsibility of the administration to carry forth a program was intended by Congress and cannot be carried out, cannot be enforced by Congress if the administration simply doesn't want to do it. Now this is a classic. instance of the administration refusing to administer the law as Congress intended it. I think really there is only one remedy to it and that is for the Congress to remove the authority completely from the administration, and put it under Congress as it did the various commissions. I think this is really your only solution.

Now assuming this is unconstitutional, assuming that the President is not going for this bill, I think he ought to be given the opportunity to do so, and then if he doesn't, if he says in effect, "We do not want to go ahead and administer this law as Congress wants it done, we want to go ahead and continue to maladminister it as we have done in the past, then I think it is up to Congress at that point to face up to the situation and to literally remove all of the authority from the administration and put it under Congress.

Mr. CLARK. I just want to leave on one note, Mr. Chairman, which I meant to include in my earlier remarks. You will recall that President Kennedy made quite an excellent statement on the matter of making hospitalization more available or accessible. The action of the General Accounting Office which says that seamen now take a third place, that they cannot move ahead of any veteran, destroys the idea of accessibility, because the service is no longer readily accessible at all.

So the very reasoning in transfer proposals evaporates with this ruling from the General Accounting Office. They have destroyed accessibility under this ruling particularly in the Midwest where the hospitals have been closed.

Senator BARTLETT. Thank you very much.

Mr. CLARK. Thank you, sir.

Senator BARTLETT. Just a moment. Mr. Kenney has a question.

Mr. KENNEY. With your permission, Senator, I wanted as minority counsel to express my regrets that seamen find themselves such orphans in the Great Society.

Mr. CLARK Thank you.

Senator BARTLETT. Well, they are a little bit adrift, I guess.
Mr. Foster?

Mr. FOSTER. No questions.

Senator BARTLETT. Admiral Hirshfield.

STATEMENT OF VICE ADM. JAMES A. HIRSHFIELD, U.S. COAST GUARD (RETIRED), PRESIDENT, LAKE CARRIERS' ASSOCIATION, CLEVELAND, OHIO

Admiral HIRSHFIELD. Lake Carriers' Association heartily endorses S. 1917, and urges its enactment. There are on the Great Lakes today some 260 vessels under American flag engaged in the bulk commodity trades. These vessels employ about 9,000 seamen. Overall, when other types of vessels, outside of the bulk commodity trades, are included, the total number of ships under American flag on the Great Lakes is 304.

50-188-65- -7

The only Public Health Service hospital facility now available to seamen in the Great Lakes area is the hospital located in Detroit, Mich. The Public Health Service hospital in Chicago has already been closed. Medical and dental care for merchant seamen have been provided by the Public Health Service since 1798. The experience gained by the Service over the ensuing years has certainly resulted in an understanding and appreciation of the problems peculiar to seamen. They should not now be made secondary citizens by turning responsibility for their care and treatment over to the Veterans' Administration, the primary mission of which is to care for the veteran.

It is true that many of the Public Health Service hospitals are outmoded, but you do not solve this problem by eliminating the service or transferring the function to the Veterans' Administration. It hardly seems reasonable to believe that seamen would receive the same consideration and care in a Veterans' Administration hospital as from the Public Health Service system.

The proposed restriction of the Public Health Service system is viewed as inimical to the already hard-pressed Great Lakes vessel industry, and is further evidence of a lack of interest by the Federal Government in this important segment of the American merchant marine. As far as the Great Lakes are concerned, the proposed discontinuance of the Detroit Public Health Service hospital can only result in less skillful attention to the medical needs of the seamen.

It is difficult to understand why the Department proposes to maintain facilities on each of the three sea coasts but withdraw those same facilities entirely from the Great Lakes. Such a drastic step should not be taken without appropriate congressional approval. For this reason, Lake Carriers' Association endorses S. 1917 and urges its

enactment.

Senator BARTLETT. Mr. Meyers, please?

STATEMENT OF THOMAS L. MEYERS, WASHINGTON REPRESENTATIVE, SEAFARERS INTERNATIONAL UNION, WASHINGTON, D.C.

Mr. MEYERS. Mr. Chairman, we have filed a written report for the record and I will try to confine my remarks to what has been left unsaid here or my observations on certain comments made earlier. Senator BARTLETT. When you say "we," you mean the Seafarers International Union of North America?

Mr. MEYERS. Yes. I am speaking for them, sir.

The question arises in my mind, sir, as to whether the Public Health Service remarks regarding their responsibility should be interpreted as being merely physical. We would assume, or we would hope the interpretation placed upon the responsibility, as referred to in their statement, means medical responsibility. We fail to see where the transfer of seamen to veterans hospitals constitutes a continuation of medical responsibility for the care of American merchant seamen. We would hope, sir, that adequate facilities and services are made available for seamen, whether they are referred to the veterans hospitals or to community hospitals, in the event that VA facilities are not available to them.

We are particularly concerned in view of the General Accounting Office interpretation of the legality of treating seamen at veterans